Re Azevedo, 2025 CanLII 26086

Ontario Review Board

Re: Andrew Steven Azevedo

ORB File No: 8437

Hearing held on: Thursday, January 23, 2025

Place of hearing: Waypoint Centre for Mental Health Care

Pursuant to: Section 672.81(1) and 672.48(1) of the Criminal Code

Before:

Alternate Chairperson: Mr. J. Weinstein Members: Dr. P.L. Darby Dr. G. Stones Ms. M. Chamberlain Ms. B. Naegele

Parties Appearing:

Accused: Andrew S. Azevedo Counsel: Mr. A. Horton (via Zoom)

The person in charge of hospital: Counsel: Ms. J. Lefebvre

Attorney General of Ontario: Counsel: Ms. J. Armenise

REASONS FOR DISPOSITION

(Dated March 26, 2025)

Introduction:

1. On November 28, 2023, Mr. Andrew Azevedo was found unfit to stand trial on charges of assault, contrary to the Criminal Code of Canada (“Criminal Code”).

2. Mr. Azevedo is subject to a Disposition of the Ontario Review Board (“Board”), dated January 19, 2024, finding him unfit to stand trial and detaining him at the High Secure Provincial Forensic Programs of the Waypoint Centre for Mental Health Care (“Waypoint”).

3. On January 23, 2025, the Board convened a hearing at Waypoint to conduct the annual review of the current Disposition.

4. Mr. Azevedo was present, as were his mother, father and siblings. His counsel, Mr. A. Horton, attended via Zoom.

5. A Hospital Report, dated December 10, 2024 (the "Hospital Report"), was entered as Exhibit 1.

6. In accordance with s. 672.48(1) of the Criminal Code, the Board must decide whether Mr. Azevedo is fit to stand trial on the day of the hearing, within the meaning of s. 2 of the Criminal Code. Specifically, is Mr. Azevedo unable, on account of mental disorder, to understand the nature of a trial and the possible consequences of the proceedings and to communicate with counsel? The other issues before the Board are whether Mr. Azevedo is permanently unfit, and if so, whether he remains a significant threat to the safety of the public.

7. If Mr. Azevedo is found fit, he must be sent back to court. If he is found unfit, but not permanently so, the Board must make a Disposition that is necessary and appropriate, considering the criteria set forth in s. 672.54 of the Criminal Code. Similarly, if he is found to be both permanently unfit and a significant threat, the Board must determine the appropriate Disposition. If he is not found to pose a significant threat to public safety, he must be returned to the court.

8. For the reasons set out below, and based on the evidence before us, this Board has concluded that Mr. Azevedo is unfit to stand trial. The Board further concluded that Mr. Azevedo is not permanently unfit. The Board also found that the necessary and appropriate Disposition to manage Mr. Azevedo’s threat to public safety is a continuation of the existing Detention Order.

Current Psychiatric Diagnoses

9. Schizophrenia

Social Anxiety Disorder

Obsessive Compulsive Disorder

Outstanding Charges:

10. The circumstances of the allegations against Mr. Azevedo are excerpted from last year’s Board Reasons, as follows:

“On April 22, 2022, Dr. Craig Hudson phoned the Southern Georgian Bay OPP to report that a patient at Waypoint, Andrew Azevedo had attacked him on April 6, 2022. Dr. Hudson is a psychiatrist and was on call at Waypoint. He was called to the admissions unit to process a new admission, and when he walked into the unit, he was met by Azevedo, who immediately attacked him. He did not recall the exact physical altercations, but stated he was grabbed (primarily his upper body) and potentially struck, until he was able to get Azevedo under control, and gain the assistance of a nurse to get him back to his room. Dr. Hudson stated that he had no past with this patient at all, and the attack was unprovoked.”

Background:

11. Mr. Azevedo’s background is outlined in the Hospital Report, and it is accurately summarized in last year’s Reasons:

“He is the youngest of three children. He met his developmental milestones at the expected ages. He dropped out of high school in grade 11. In the past, he worked with his father in a landscaping business. He is currently financially supported by the Ontario Disability Support Program. Mr. Azevedo has never been married and does not have any dependents. He has a history of cannabis use in his teenage years. A criminal records check showed that he does not have a criminal record, however there are references in the Hospital Report of numerous assaults on others while living in the community and on other patients when he was hospitalized.

Since 2004 he has been psychiatrically treated and has largely been compliant with taking his anti-psychotic medication. He has also been on a community treatment order in the past. There is no history of past trauma. He has had numerous admissions, including very lengthy ones, to various hospitals in the region. In the community he has been under the supervision of the Assertive Community Treatment Team. Prior to his current admission to Waypoint, Mr. Azevedo had a lengthy admission from November 2020 to September 2021 at the Ontario Shores Centre for Mental Health Sciences.

Mr. Azevedo had been admitted to Waypoint in the past, on an involuntary basis under the Mental Health Act. Around January 2022, while admitted at Waypoint, he had a total of nine sessions of Electroconvulsive Therapy. Due to growing concerns about prolonged seizures, also attributed to his high clozapine levels at the time, his mother withdrew her consent for ECT. He was to be discharged in March 2022, however his mother changed her mind, and the discharge date was pushed back as a result. With a view to discharging him, a decision was made to transfer him to the Acute Assessment Program at Waypoint, however he became combative during the transfer, and it was decided that he had to remain in seclusion.

Mr. Azevedo was still at Waypoint on April 6, 2022 when the alleged offence occurred. The Hospital Report notes that typically “…when he gets released, he goes home to his mother, gets violent with her, she refuses to pursue charges, and he ends up right back in the same situation.”

Course Since Last Disposition:

12. Mr. Azevedo’s course since his last Disposition is set out in detail in the Hospital Report. The following extracted paragraphs are relevant to this hearing:

“Mr. Azevedo remains in seclusion due to unpredictable and aggressive behaviour towards staff and copatients, driven by the intense and unrelenting symptoms of his treatment refractory illness. Augmentation of medication and the initiation of electroconvulsive therapy (ECT) over the period in review have had no effect on his psychotic symptoms. He presents a high risk of harm to others in this context.

Mr. Azevedo’s insight into his illness and symptoms fluctuates. He is generally compliant with his treatment regimen, however he, together with his family, reports frustration with his lack of response, and on occasion asks that ECT be discontinued.

A Crisis Prevention Plan (CPP) remains in place to ensure inasmuch as possible everyone’s safety around Mr. Azevedo. It lists his early warning signs and signs of decompensation, and provides strategies to minimize behavioural incidents, as well as approaches to take in the moment. Mr. Azevedo’s CPP details that he must wear wrist and waist restraints for all activities out of his room, including for showers, and that a minimum of four staff be present with him at all times. Further, according to the Nursing Pre-Board Report, “Oral PRNs [are] provided just prior to coming out”, as Mr. Azevedo “is at risk for becoming anxious and stimulated while out with SRT, which increases his risk of aggression”.

Mr. Azevedo participates in offered seclusion relief on average three to four times weekly of late. At times he declines offers to come out of his room (“He reported declining seclusion relief because of the voices” – June 4, 2024); at other times he is non-responsive to staff’s attempts to assess his mental status, therefore it cannot be offered to him.

Mr. Azevedo has engaged in physical aggression in the form of attempting to and successfully striking at staff members.

Mr. Azevedo engages in sexually inappropriate behaviors. These behaviors include proposition staff to have sex with him, making sexual comments on staff’s appearance, and frequently calling staff to his door.

In efforts to seek out alternative treatment strategies to those already attempted, Mr. Azevedo was referred to Dr. Y. Naidoo, MD, FRCPC, for an external seclusion consultation.

In my opinion, seclusion continues to be necessary for Mr. Azevedo. The treatment team has taken a patient-centered and caring approach to manage his risk and to reintegrate him into the unit milieu. Those efforts include daily trial out of seclusion periods, inquiring with the patient about his ability to tolerate distress, music, frequent support and rapport-building, all with positive effect. However, Mr. Azevedo continues to exhibit psychotic symptoms, grandiosity which have been associated with serious violence and aggression on numerous occasions, as well as sexually inappropriate comments. He has a treatment refractory psychotic illness and has partly benefited from clozapine and Haldol. Absent seclusion, he would at extremely high risk for imminently committing violent acts against copatients and staff, and sexually inappropriate behaviour owing to his hypersexuality and disinhibition at times.”

Position of the Parties:

13. Counsels for the hospital, the Attorney General and Mr. Azevedo advised that this was a joint submission; all were adopting the hospital’s recommendation of continuation of the existing Detention Order Disposition. All parties also agreed that Mr. Azevedo is unfit to stand trial but is not permanently so.

Evidence at the Hearing:

14. The Board had available to it the evidence and documents forming the Record, the Exhibits, and oral evidence from Dr. Mishra.

15. Dr. Mishra co-authored the Hospital Report, and he testified as follows:

a) He met with Mr. Azevedo to assess his fitness to stand trial on both Monday, January 20, 2025, and yesterday.

b) In early January, Mr. Azevedo had to be placed in a safety building for three days, as he was voicing thoughts of hurting himself and ending his life. Accordingly, he was placed in safety clothing in a safe room.

c) Mr. Azevedo engaged in a course of ECT, receiving 29 treatments. ECT was discontinued in December, at the request of the SDM.

d) The treatment team is making an application to Health Canada to import a new antipsychotic treatment available in the U.S., called Cobenfy. They are hoping that this new psychotropic medication will help treat Mr. Azevedo’s refractory form of schizophrenia.

e) The treatment team did observe benefits of ECT for Mr. Azevedo; his mood was brighter, he was more engaged, and he participated in more activities. There was also a notable reduction in aggression towards staff.

f) Since the discontinuation of ECT, they have noticed that Mr. Azevedo has been more despondent. Mr. Azevedo claimed that he experienced no change in the intensity, or the frequency, of his auditory hallucinations. However, the treatment team observed that he was not acting out as much.

g) He did not believe that Mr. Azevedo could be classified as permanently unfit at this time, as he is hoping that the new psychotropic medication will help Mr. Azevedo regain fitness.

h) Mr. Azevedo has a good rapport with the treatment team, and he would not be able to enjoy the same freedoms and relief from seclusion if he were to be transferred to a less secure facility.

i) Mr. Azevedo is offered seclusion relief on a daily basis, and when appropriate, he is able to enjoy relief from seclusion with a dedicated team of four. When appropriate, Mr. Azevedo is able to engage in music therapy, as well as visit the gym.

j) Mr. Azevedo has a very strong, supportive relationship with his family, who visit him on a regular basis.

16. In response to questions from counsel for Mr. Azevedo, Dr. Mishra testified:

a) It is both his opinion, and that of the treatment team, that resumption of ECT treatment would be beneficial for Mr. Azevedo.

b) He estimated that Mr. Azevedo is able to enjoy relief from seclusion approximately four times per week.

c) Mr. Azevedo’s relief from seclusion is based on his mental stability and his ability not to harm others. There have been instances, as set out in the Hospital Report, when Mr. Azevedo has struck out at staff while they were applying restraints to escort him out of the seclusion room.

17. In response to questions from the panel, Dr. Mishra testified:

a) Fitness coaching is provided both by himself and the psychometrist.

b) Mr. Azevedo is not able to answer the basic Taylor test questions. His biggest challenge is his inability to focus or to remember any of the answers provided to him regarding the Taylor questions.

c) Mr. Azevedo fails both the Taylor questions and the requirement of the Court of Appeal set out in Bharwani. Mr. Azevedo cannot meaningfully communicate with counsel or make rational decisions. Because of his major mental illness, ongoing symptoms and inability to focus, Mr. Azevedo would not be able to meaningfully participate in a trial.

18. No other evidence was called.

Analysis and Conclusions:

19. Having heard and considered all the evidence and submissions from the parties, this Board finds that Mr. Azevedo is currently unfit to stand trial, based on the test to be applied in R v Taylor, as well as set out in R v Bharwani, 2023 ONCA 203. The uncontroverted evidence of Dr. Mishra is that Mr. Azevedo would be unable to meaningfully participate in a trial or instruct counsel, because of his major mental illness, his ongoing symptoms and his inability to focus. He is unable to understand the nature, and object, of the proceedings.

20. The Court of Appeal addressed the fitness tests most recently in R. v. Bharwani. The five-member Court emphasized the need for meaningful participation in proceedings to be fit for trial.

21. Applying the test set out in Bharwani, nothing in the evidence before this Board allows us to conclude, on a balance of probabilities, that Mr. Azevedo meets the test for fitness. In particular, the Board believes Mr. Azevedo would not be meaningfully present. He would not be able to participate appropriately, nor to instruct counsel, in criminal proceedings.

22. Having found that Mr. Azevedo is unfit, but not permanently so, the Board must make a Disposition that is necessary and appropriate, considering the criteria set forth in s. 672.54 of the Criminal Code. In particular, the Board relies on the Composite Assessment of Risk, as well as the External Seclusion Consultation originally performed by Dr. Naidoo, as reproduced in these Reasons in Paragraph 12:

“Mr. Acevedo suffers from schizophrenia and his illness is treatment refractory. He continues to experience active symptoms in the form of command auditory hallucinations telling him to hurt others. He is unable to resist from acting on them despite feeling guilty about doing so. He has repeatedly assaulted or attempted to assault various members of staff and members of the public. His level of violence necessitated the transfer from the acute program to the high secure potential forensic program. He continues to experience ongoing symptoms and presents a significant threat to the safety of the public due to the imminent risk of violence to others if he was not provided with the structure and support under the jurisdiction of the Ontario Review Board.”

23. Mr. Azevedo has a crisis prevention plan in place, to protect his own safety and those around him, as much as possible, and to maximize his ability to enjoy the seclusion relief protocol.

24. In consideration of all the evidence, the submissions of the parties and the criteria set forth in s. 672.54, particularly the safety of the public, in addition to the mental condition of Mr. Azevedo, his reintegration into society and his other needs, the necessary and appropriate Disposition is a continuation of the existing Detention Order.

DATED this 26th day of March 2025, at the City of Toronto, in the Region of Toronto.

Mr. J. Weinstein Alternate Chairperson

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Office of the Registrar Ontario Review Board